Cocaine Sentencing Injustice Slightly Lessened

Crack cocaine, it is widely known, causes irrational behavior. I speak not of irrational behavior among the drug's users, but rather among politicians. It has done so ever since crack appeared on the scene in America during the 1980s. Today it was announced that Congress has approved a bill (which will now head for President Obama's desk) which will scale back the worst of the irrational legislation which passed in the Reagan era. Somewhat. In true incrementalist fashion, Democrats have now made things slightly less unfair, but fell far short of actual fairness. It's as if, right after the Civil War, Congress announced that black people would now count as four-fifths of a person, instead of the previous three-fifths -- in other words, a step towards equality, but not exactly the giant leap of the Thirteenth and Fourteenth Amendments. Which makes it rather hard to praise such an effort, even though it does represent (some) progress.

Crack cocaine is no different, really, than powder cocaine. They're both the same thing, in other words -- a chemical (or "drug") that influences the human body. The only real difference between the two is that crack is in a form which can be smoked, and powder is in a form which can be snorted, or melted and injected. Powder actually can be smoked (or "freebased") as well, but it requires some effort to do so -- such as the use of ether to separate out the impurities, and the use of a very hot flame to ignite it. Ether, by the way, is highly flammable (one might accurately say "explosive"). And using a blowtorch around ether can lead to accidents, as Richard Pryor can attest to (as he later joked: "when you are running down the street... and you are on fire... people get out of your way"). Crack cocaine was developed to be easier to ignite, meaning you could smoke it using an ordinary cigarette lighter, instead of a blowtorch. This development occurred in the 1980s, as previously mentioned.

The politicians of the day freaked out. The appearance of crack, during one of the high points (pun intended) of Drug War hysteria (see: Nancy Reagan) caused politicians to fall all over themselves to pass tough-on-crime drug laws for this new crack epidemic, before machine-gun-wielding crack babies attacked the Capitol en masse.

The result was extremely harsh "mandatory minimum" sentences for the new form of the drug. If you were caught with as little as five grams of crack in your possession, you got five years in the slammer. Now, five grams is about what a street-level dealer might have on him (or her). It's enough to get a limited number of people high, or enough to last a single crack smoker at least a week (the actual time would vary, depending on the user's habit, of course). For comparison, a gram of any powdered substance (for those of us who have forgotten the metric system) is about the same amount as is in one of those little packets of sugar you get in a coffee shop. Five sugar packets' worth of crack equaled five years in jail.

Now, it's hard to stand up for a crack dealer's rights. It was even harder back then when Congress was proposing such things. "Toss them all in jail, and throw away the key" was how the country's thinking went at the time. This was before we surpassed the Soviet Union and China for the number and per-capita percentage of people in our jails, by the way.

There was only one problem with the whole scheme. And that was that Congress conveniently forgot to change the law for powdered cocaine at the same time. Which meant that to trigger the same five-year mandatory minimum sentence, you had to get caught with five hundred grams of powdered cocaine. Five hundred grams (again, for the metrically-impaired) is over a pound of coke (it's close to a pound and an eighth). Which is a lot of cocaine, worth an enormous amount of money. We're not talking about the corner dealer here, we're not even talking about the guy the corner dealer buys his stuff from -- we're talking about the wholesaler who sells to the middleman who sells to the corner dealer. A major drug trafficker, in other words, and not some small fish who is feeding his own habit by selling to a few other folks.

Sen. Dick Durbin, D-Ill., the main sponsor of the bill in the Senate with Sen. Jeff Sessions, R-Ala., said last year close to 1,500 people were convicted for possession of somewhere between five and 25 grams of crack cocaine, subjecting them to mandatory minimum sentences.

Some 80 percent of those convicted of crack cocaine offenses are black.

In the 2008 campaign, Obama said the sentencing disparity "has disproportionately filled our prisons with young black and Latino drug users." He cited figures that blacks serve almost as much time for drug offenses -- 58.7 months -- as whites do for violent offenses -- 61.7 months.

The major impact of this law was to treat inner-city drug users and dealers much more harshly than the folks out in the suburbs doing a few lines. In other words, whether the intent was there or not by the politicians who passed this law, the upshot was that white people had a whole different set of laws than black and brown people -- for what is essentially the same substance. The inherent unfairness of this should be readily evident to all.

But now, for the first time since the Drug War began, Congress has eliminated a mandatory minimum sentence (for first-time possession of crack cocaine). And it has changed the level of crack you must be caught with which triggers that five-year mandatory minimum -- from five grams to 28 grams (which is roughly an ounce).

This is landmark legislation, I realize. Moving away from the "lock them all up" mentality, for politicians, is remarkable simply because it does not happen often (read: "ever"). Backing down on Draconian drug laws is not exactly atop the priorities list of many politicians, because the ads attacking them for doing so just about write themselves. So I do applaud Congress for addressing the issue (both houses have now passed the bill).

But, at the same time, what they've done is to change the ratio of unfairness from one-hundred-to-one (500:5) down to roughly eighteen-to-one (500:28). The penalties for crack and powder cocaine are still nowhere near parity. Someone possessing an ounce of crack will get a much stricter punishment than someone possessing a full pound of powder cocaine. It's as if we decided to make coffee illegal, and instituted mandatory minimums for possessing five cups of coffee -- while at the same time applying the same penalty only if you were caught with 500 cups of espresso. Or made water illegal, but set a much higher bar for possessing 500 ice cubes. Either way, it is the same substance. The only thing which differs is the penalty for the "lower class" version of the substance.

Meaning that even the newly-passed bill is not exactly an exercise in equality under the law. Not by a factor of eighteen. President Obama, to his credit, called for true fairness on the campaign trail, when he said that the disparity in crack/powder cocaine punishment "cannot be justified and should be eliminated." He was right. It should be eliminated. Either start jailing a lot more suburban white kids (which would cause its own kind of outcry), or stop jailing inner-city folks disproportionally. Lower the bar for powder, or raise the bar for crack, in other words, until the penalty is equalized.

While Congress did not have the courage of their convictions to do so this time around, they did take a baby step in the right direction. This is momentous, because it is the first such step in this direction in three or four decades. But I still can't help but wish that Congress had tackled the problem not in such an incrementalist political fashion, but rather as an issue of rank inequality to be rectified by removing all of the legally-codified unfairness at once -- to restore the concept of equal treatment under the law, rather than perpetuating (if slightly lessening) the inherent injustice which still exists.